Social media: dismissal fair where employee made vulgar comments about colleague on-line

Social media: dismissal fair where employee made vulgar comments about colleague on-line

A tribunal has ruled that an employee was fairly dismissed for making vulgar comments about a female colleague on his Facebook page while at home

A recent decision from a tribunal in Northern Ireland held that an employee was fairly dismissed because comments which he posted on his Facebook page amounted to harassment of a female colleague and was in breach of the employer's Dignity at Work Policy.

However, the tribunal was critical of the employer's view that the employee's actions had bought it into "serious disrepute". It also rejected the employee's arguments that his rights under the European Convention on Human Rights (ECHR) to respect for his private and family life (article 8), to freedom of thought (article 9) and to freedom of expression (article 10) had been violated.

Facts

The claimant was employed at a call centre in Belfast. He posted obscene comments about a female colleague on his Facebook page from home. The comment mentioned his employer's name and was read by some other work colleagues. It was alleged that the comment had been brought to the employer's attention by a member of the public, but they were never interviewed as part of the disciplinary investigation. The female colleague heard about the comments and asked the claimant's girlfriend if he would remove them. Following this intervention the claimant posted further lewd comments.

The claimant admitted he had made the comments but that he had intended them to be a joke. He was dismissed for gross misconduct for harassing a fellow employee and bringing the company into disrepute for using its name in connection with the comments.

Decision

The tribunal found that the comments made on Facebook satisfied the definition of harassment in the employer's Dignity at Work Policy, it did not matter that the comments were not made directly to the colleague.

However, the tribunal said that the decision that the claimant had brought the company into disrepute was "seriously flawed." No evidence had been provided that it had been brought into disrepute. For example, in the form of the statement from the member of the public who had brought the comments to the employer's attention. Despite this the tribunal considered that harassment was, in itself, enough to amount to gross misconduct and was a fair reason to dismiss.

It also held that the claimant's rights under Articles 8, 9 and 10 ECHR were not engaged. In particular, by posting comments on his Facebook page the claimant had abandoned any right to consider the content private; notwithstanding only "friends" could view the comments they could be copied and circulated more widely.

Comment

Lots of employers are grappling with the disciplinary issues around employees' social media content, especially when this is generated outside of the workplace.

This is only a first instance decision so is not binding on other tribunals. It does however provide a timely warning to employers dealing with similar situations; they should not be too quick to assume that anything an employee posts on-line about their job, workplace or colleagues will necessarily bring the employer itself into disrepute and therefore any dismissal made on this basis alone may be held to be unfair.

The case perfectly illustrates the need for employers to have comprehensive HR policies in place which are applied properly.

The decision also follows the trend of tribunals being reluctant to find that rights under the ECHR are engaged in such cases.